An increasingly common medical procedure is raising ethical questions we're not prepared to deal with

There may be as many as a million frozen embryos in the United States, left over from couples who didn’t use all the embryos they created through in vitro fertilization (IVF), Tamar Lewin reports in The New York Times. (That’s according to rough estimates from reproductive endocrinologists.)

The extra embryos serve as sort of a backup for couples doing IVF, in case the first few tries don’t result in pregnancy. But the embryos don’t go away when a couple decides to stop treatment — they must be stored in liquid nitrogen at a cost of $US300 to $US1,200 per year, until the couple decides what to do with them.

If they don’t want to have more kids, the options are to thaw and dispose of the embryos, donate them for research, or donate them to another couple facing infertility.

More and more couples are choosing to donate their unused embryos to other couples who haven’t been able to conceive. Data from the Society for Assisted Reproduction Technology shows 1,084 IVF transfers used donated embryos in 2013, nearly double the 596 transfers in 2009.

As the number of embryos frozen and donated increases, disagreements about the moral and legal status of human embryos, which some couples consider their “potential children,” according to Lewin, become more prominent.

How should we treat an embryo?

In contrast, the American Society for Reproductive Medicine (ASRM) uses the term “donation,” and pointedly opposes calling the process “adoption” in its ethics committee’s 2013 report on the matter.

“We find that this language is deceptive because it reinforces a conceptualization of the embryo as a fully entitled legal being and thus leads to a series of procedures that are not appropriate,” the report says.

The position of the ethics committee has long been that human embryos deserve more consideration than other body tissues due to their potential to become persons, but that they should not be treated as persons. The report continues: “The donation of embryos for reproductive purposes is fundamentally a medical procedure intended to result in pregnancy and should be treated as such.”

George Annas, a bioethicist at Boston University who was at one point a member of the ASRM ethics committee, though not an author of the 2013 report on embryo donation, challenged the report’s conclusions in an interview with Frontline. The assisted reproduction industry forgets that the purpose of pregnancy is to have healthy babies, and puts the interests of couples and physicians before those of the children, he says.

“If you go through the ethics statements of [ASRM and SART], and you didn’t know anything about what they were doing, you would probably be shocked to learn that they are helping people make babies, because the interests of the children never ever have been considered by either organisation,” he argues, in the Frontline interview. “And that strikes me as just being the real Achilles’ heel.”

The argument over using the word “donation” or “adoption” is a kind of proxy for the question of the status of embryos in general.

Who owns an embryo?

What gets more attention in the news, however, are the often heated legal battles that transpire when couples who have made and frozen embryos together split up and disagree about what to do with them. (Take, for example, the tussle between actress Sophia Vergara and her ex-fiancé Nick Loeb, who wants to use the embryos to have children while she does not.)

There’s little consistency in legal rulings on the cases that have gone to court, Lewin reports. Sometimes judges say it’s a matter of contract, others say courts can’t enforce those contracts, others try to balance the interests of the parties, and still others require mutual consent from both parties for embryos to be used. Overall, the courts have supported the party asking not to use the embryos.

Thorny questions

So far, the US government hasn’t been clear about how human embryos should be considered, legally.

“We don’t know in the US whether embryos are going to be treated as property or not, as children or not, or sui generis, as something different,” Alta Charo, a bioethicist at the University of Wisconsin-Madison, told Lewin.

Trying to decide the fate of human embryos created through IVF is bringing up all sorts of “profound questions about the beginning of life, the definition of family and the technological advances that have opened new reproductive possibilities,” as Lewin writes.

With IVF and embryo donation becoming more common, we’ll have to begin to answer those questions somehow.